Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - failure to comply with directions - application dismissed

[1] On 1 June 2019 Unfair Dismissal Experts Pty Ltd filed an application on behalf of Mr Vainekatu Samuel for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009. Mr Samuel's employment was terminated by Collins Transport Group Pty Ltd (CTG) on 16 June 2019 for alleged misconduct.

[2] Following unsuccessful conciliation by a Commission Conciliator on 9 July 2019, the matter was set down for a mention by telephone before me on 18 July 2019 and directions were issued for the filing of an outline of submissions, witness statements and any other documentary material each party intended to rely upon for their respective cases.

[3] On 18 July 2019, Mr P McPhee attended the mention on behalf of CTG but Mr Samuel and his representative were unable to be contacted on the telephone numbers provided in the application. A number of attempts to contact Mr Samuel and his representative were made without success. As a result, I caused correspondence to be sent to Mr Samuel and Mr Gaffney of Unfair Dismissal Experts requiring a written explanation for their non-attendance by 19 July 2019. No response was received from either Mr Samuel or Mr Gaffney.

[4] On 22 July 2019, Mr Samuel telephoned my chambers to advise that he had been away due to a family emergency, and indicated that he still wished to proceed with his application. Mr Samuel advised that he was no longer represented, and undertook to respond to the email correspondence in writing later that day. Mr Samuel was reminded on this occasion of his obligation to comply with the directions which required him to file the material in support of his claim by 4.00 pm on 31 July 2019.

[5] No response was received from Mr Samuel, and further correspondence was sent to him on 23 July 2019 requiring written confirmation from him as to whether he wished to proceed with the application. The correspondence indicated that a failure to respond may result in his application being dismissed.

[6] The Commission did not receive any correspondence from Mr Samuel and did not receive his material by the stipulated time of 31 July 2019.

[7] On 1 August 2019, my Chambers wrote to Mr Samuel noting his non-compliance with the directions and requiring him to file his material by 2 August 2019. Mr Samuel was again warned of the possibility that his application might be dismissed if he did not comply with the directions.

[8] Mr Samuel did not file his material on 2 August 2019. My associate was able to speak with him later that day and during this conversation, Mr Samuel asserted that his failure to comply with the Commission directions was caused by some unfortunate circumstances that he had recently experienced. Given his assertion, Mr Samuel was advised that if he was unable to file his material but still wished to proceed with the application, he should seek an extension of time and provide documentary evidence to support the extension. Mr Samuel agreed to provide written response later the same day but failed to do so.

[9] Taking into consideration the reasons provided by Mr Samuel as to his non-compliance, I decided to grant a further extension for him to file his material by 7 August 2019. The correspondence sent to him on 2 August 2019 expressly stated that his application would be dismissed if he did not comply with the extended deadline.

[10] No material or correspondence was received from Mr Samuel.

[11] Section 587 of the Act is in the following terms:

(1) Without limiting when FWC may dismiss an application, FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[12] The words, "W_ithout limiting when FWC may dismiss an application_" at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] Having considered the history of this matter set out above, I am satisfied that it is appropriate to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer